M/S.Oriental Insurance Co. Ltd, Kurnool Vs Hazeera Bee & 5 Ors.

This appeal under section 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ Insurance company impugning the order dated 16.05.2007 of the learned Chairman, Motor Accident Claims Tribunal – Cum – Principal District Judge, Kurnool in MVOP.No.1189 of 2005.

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Heard arguments of Smt.V.Durga, the learned counsel for appellant and Sri Vivekanand Virupaksha, the learned counsel for respondent Nos.2 to 5.

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The following facts are required to be noticed:

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Mr.Lateef was a pillion rider of a scooter being driven by Sri Shaik Shalu Miah/ PW.2 and they were travelling towards Bangarupeta. At about 10 am on 03.07.2005, the motorcycle bearing registration No. AP 21 J 8101 being driven by Shaik Shavali came from behind at high speed and dashed the scooter. Because of this collision, Mr. Latheef fell and suffered serious head injury. He was admitted in Government General Hospital, Kurnool and while undergoing treatment, he died out of those injuries on 06.07.2005. His mother, his wife and three minor

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children filed MVOP.No.1189 of 2005 praying for Rs.25,00,000/as compensation. The owner of the offending motor cycle was shown as R1 and the insurer/ the Oriental Insurance Company Limited was shown as R2 which issued the insurance policy. Before the claims tribunal, the owner of the offending vehicle did not choose to appear and contest. The insurance company raised serious contest about the involvement of the motor cycle bearing registration No. AP 21 J 8101 and contended that there was belated registration of FIR and the owner of the offending vehicle and the person who allegedly drove the same are brothers and there was collusion among all the parties. It also raised questions about contributory negligence and finally prayed for dismissal of the claim. Learned claims tribunal settled the following issues for trial:

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Whether the accident occurred on 03-07-2005 at about 10 am., at Venkataramana colony, Kurnool, resulting in the death of Shalk Abdul Latheef, was due to rash and negligent driving of the Scooter bearing registration No.AP21-J-8101? (or) due to rash and negligent driving of the another motorcycle bearing registration no.AP-21-A-3656, by its driver?

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Whether the petition is bad for non-joinder of owner and Insurer of the other motorcycle as necessary partles?

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Whether the petitioners are entitled to Rs.12,00,000/towards compensation? If not, to what amount and from which of the respondents?

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To what relief?

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PW.1 to 3 and Exs.A1 to A4 for claimants; RW.1 and Exs.B1 to B7 for respondents were the evidence placed for consideration. Learned claims tribunal extensively dealt with the disputed facts and concluded that the accident was out of rash or negligent driving of the driver of the offending vehicle. Therefore, there was no need to implead the owner and the insurer of the scooter on which the deceased was travelling at the material point of time. On consideration of the material on record, it found Rs.3,92,500/- as compensation would be adequate in the facts and circumstances of the case. Accordingly, it passed the award in the following terms.

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In the result, the petition is allowed and the petitioners 1 to 5 are entitled to compensation of Rs.3,92,500/- with interest thereon @ 7.5% per annum from the date of petition till the date of payment and proportionate costs. The respondents 1 and 2 are liable to pay the compensation amount. Out of the aforesaid compensation amount, the first petitioner is entitled to

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Rs.30,000/-: the second petitioner is entitled to Rs.1,37,500/- and the petitioners 3 to 5 are entitled Rs.75,000/- each. The first petitioner is permitted to withdraw her entire share of compensation amount, after deposit. On deposit of compensation amount, the second petitioner is permitted to withdraw an amount of Rs.25,000/- from out of her share awarded and the balance shall be kept in Fixed Deposit In a Nationalized Bank for a period of 39 months. The compensation amount awarded to the minor petitioners i.e., 3 to 5 shall be kept in Fixed Deposits in a Nationalized Bank till they attain majority. The second petitioner is also entitled to entire interest and costs that accrues from the date of filing of the petition till deposit of the entire compensation amount. Meanwhile, the second petitioner is at liberty to withdraw half yearly interest that accrues on the aforesaid deposits for the maintenance and upkeep of the minor petitioners.

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4. Aggrieved by it, the insurance company preferred this

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appeal on the following grounds

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The court below failed to see that the Appellant Company is not liable in as much as

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i. the Motor Cycle though insured with the Appellant Company was not at all involved in the accident but was later roped in by the Claimants in collusion with the owner of the Insured Vehicle.

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ii. the F.I.R. was registered after the death of the deceased and that too 4 days after the accident but due consideration was not given by the Trial Court to this aspect. Rather, it has accepted the reason given for delay in reporting as PW2 (the rider of the Scooter) was not available, I am afraid, it is an unacceptable reason under law.

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iii. there is a discrepancy in the deposition given by the owner of the Insured Vehicle and the eye witness in the O.P. examined as PW.1 and PW.5 in the Criminal Case and the fact that the person shown as rider of the Motor

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Cycle and the accused in the Criminal Case and the owner of the Insured Vehicle are brothers and the owner of the Insured Vehicle turned hostile to allow his brother to be acquitted but however is not contesting the present O.P.

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iv. Exs.B2, B3, B4 and B5 ought to have weighed with the Trial Court on this aspect.

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v. when depositions in one Court are contrary to the depositions in other Court, the witness is called a Turn Coat and as per the Evidence Act, both the depositions get dissolved leaving no eye-witness account on record necessitating falling back on F.I.R.

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vi. the belated F.I.R. cannot be taken as conclusive evidence for the involvement of the Insured Vehicle as the contents of F.I.R. are not conclusive in a Civil Case and the same are meant either to corroborate or contradict the oral evidence.

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vii. When there is no eye witness evidence as above on record, there is nothing to corroborate.

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viii. F.I.R. for Civil Cases is also treated as preserved original version of the case but in the instant case, being belated, the version contained therein lost its significance.

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3. The Trial Court instead of applying the above reasons, simply held erroneously that the findings of the Criminal Court are not applicable to Civil Cases when the Appellant Company is not relying on the findings to say that the rider of the Insured Vehicle is not negligent but on the other hand is only stating that the vehicle is not involved and there is no eye witness evidence to establish the involvement.

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While refuting the contentions raised in the appeal, the learned counsel arguing for the respondents/claimants submit that the compensation awarded by the claims tribunal is awfully meager and is required to be revised as it failed to notice the

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necessary facts and failed to apply necessary principles and compensation as prayed before the claims tribunal is required to be granted. Learned counsel further argued that even without filing an appeal or cross objections, the claimants are entitled to pray the court to award just compensation. For respondents/ claimants, the following rulings are cited:

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National Insurance Company Limited V. Pranay Sethi¹

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Anita Sharma V. The New India Assurance Company Limited²

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United India Insurance Company Limited V. Madiga Thappeta Ramakka³

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G.Jayalaxmi V. Syed Anwar Hussain Quadri⁴

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The National Insurance Company Limited V.

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E.Suseelamma⁵

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The following points fall for consideration

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1 (2017) 16 SCC 680

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2 MANU/SC/0928/2020

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3 MANU/AP/0060/1994

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4 MANU/AP/0779/2012

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5 2023 APHC 28075

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1.Whether the impugned award is erroneous in believing that the accident was out of rash or negligent driving of the driver of the offending motor cycle?

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2. Whether the impugned award failed to grant just compensation?

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POINT No.1

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It is elementary that each case must be decided on the evidence recorded in it. Evidence recorded in another case cannot be considered in arriving at the decision⁶ . It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant’s case. Knowing the Indian conditions as they are, it cannot be expected that a common man has to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. In such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. There could be

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6 Mittulal V. State of Madhya Pradesh (1975) 3 SCC 529

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a variety of reasons in genuine cases for delayed lodgment of FIR. Unless the kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons. Lodging of FIR certainly proves the factum of accident so that the victim can lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. In cases of delay, the courts are required to examine the evidence with closer scrutiny and in doing so the contents of the FIR should also be scrutinized more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent people then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR

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in such types of cases is primarily to intimate the police to initiate investigation of criminal offences⁷ .

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The above principles are required to be kept in mind in disposal of this appeal.

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The subject matter of accident was registered as Cr.No.102 of 2005 at Kurnool Traffic Police Station as evidenced by Ex.A1 which is the certified copy of the FIR. After due investigation, a charge sheet was laid and the learned Judicial Magistrate of the First Class registered the same as C.C.No.833 of 2005 and the certified copy of it is exhibited as per Ex.A3. After due trial, the accused who was prosecuted in that case was acquitted and Ex.B5 is the certified copy of the judgment in that C.C.No.833 of 2005.

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The fact that in the automobile accident, Mr.Latheef suffered injuries and died and inquest over the dead body was held as seen from the certified copy of the Inquest report/ Ex.A2 and the dead body was subjected to autopsy as seen from the certified copy of the postmortem report as per Ex.A4 are not in

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7 Ravi V. Badrinarayan (2011) 4 SCC 693

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dispute. The alleged offending motorcycle bearing registration No.AP 21 J 8101 is owned by Shah Noor Ahmed who is R6 in the present appeal is not in dispute. He got the motor cycle insured and as on the date of subject matter accident on 03.07.2005, there was valid and effective insurance policy as contained in Ex.B1 is undisputed. In the light of the above undisputed facts, the evidence on record is required to be scrutinized.

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PW.2/ Shaik Shalu Miah is the one who lodged FIR. The accident took place on 03.07.2005. The victim having received head injury went unconscious and continued to be so till 06.07.2005 and then succumbed to death to the injuries he sustained. During the above period, he was in hospital being attended by his near and dear including PW.2. It was only after the death of Mr.Latheef FIR was lodged.

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Smt.V.Durga, the learned counsel for appellant/insurance company strongly contended that the above delay of three days and more between the date of occurrence of accident and the date of lodging the FIR creates grave suspicion about the truthfulness of the case. Answer to this submission lies in Ex.A3/ charge sheet. It is an admitted fact on both sides that such

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belated FIR was investigated into by the State police and then discovered the fact that Mr.Latheef suffered automobile accident and then found the driver of the offending motorcycle was the cause of accident and prosecuted him. The fact that Mr.Latheef suffered automobile accident and died is never in dispute. The comprehension of the insurance company is that the driver of the offending motorcycle is falsely implicated in this case. State police had no reason to falsely prosecute an innocent. Their investigative outcome indicated the driver of the offending motorcycle had driven it in rash or negligent manner and caused the accident. As laid down by the Hon’ble Supreme Court of India various factors are to be noticed in considering the delayed FIR. When the victim suffered head injury and was unconscious it was nothing but natural for everyone connected to him to feel agitated and saw that he was restored to good health. Therefore, the mere delay in lodging the FIR by itself cannot lead to inevitable conclusion that it was a false case. It can also be stated that Section 154 of the CrPC merely requires information to the police about commission of a cognizable offence. It by itself does not indicate that such information was bound to be lodged with all expedition. Therefore, there was no statutory mandate that

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minutes after the crime, there should be an FIR. Delay in lodging the FIR creates only doubt as to whether it has brought out any false allegations or is riddled with embellishments. In the case at hand, neither of them could be seen from the contents of the FIR which was followed by a charge sheet. Cross-examination of PW.1 to 3 and evidence of RW.1 have not shown any tangible facts to think collusion among police, owner of the offending vehicle and the claimants. Therefore, the contention of the appellant with reference to delayed FIR is negatived.

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The next forceful submission of Smt.V.Durga, the learned counsel for appellant/ insurance company is that this very PW.2 before the claims tribunal deposed about the driving of the offending motor cycle and the manner in which the accident occurred but spoke differently before the criminal court where he testified as one of the witnesses as evidenced by Ex.B2 which is certified copy of the evidence in C.C.No.833 of 2005. The substance of the submission of the learned counsel is that this PW.2 while deposing in the criminal court turned hostile. Thus, he expressed his ignorance before the criminal court but deposed before the claims tribunal all the facts as if he knew the facts. While the argument of the learned counsel is attractive, the

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aspect that is to be remembered is the mandate of law as enunciated by their Lordships of the Hon’ble Supreme Court of India about which a reference is made in the earlier parts of this judgment that each case is to be decided based on the evidence brought before it. Applying the said principle when one scrutinizes the evidence of PW.2 as made available before the claims tribunal one would find that it was the driver of the offending motor cycle by whose rash or negligent driving, the collision of the motor cycle with scooter took place leading to head injuries and consequential death of Mr.Latheef. Therefore, from the evidence that is made available, it can be said that the claims tribunal was right in concluding the fact. Though it is true the former deposition of PW.2 is brought on record, the point to be taken note of is PW.2 is not a party in the MVOP that was enquired into by the claims tribunal or in C.C.No.833 of 2005. He is a mere witness in both cases. His former deposition must be confronted to him while he was in box. That did not seem to have happened, as the former deposition of him was brought on record through RW.1 who was an officer of the insurance company. In that view of the matter much credence cannot be granted to the former evidence

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of PW.2⁸ . Viewed in the above angle, the grounds urged in this appeal by the insurance company are to be stated as devoid of merits. Learned claims tribunal did not commit any error in arriving at the conclusion that the driver of the offending motor cycle was responsible for the death of Mr.Latheef. Hence this point is answered against the appellant/insurance company.

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POINT No.2

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The fact on the record is that the insurance company impugned the award of the claims tribunal. No cross appeal was filed and no cross objections were raised by the respondents/claimants. Then the question is whether the plea of the respondents/claimants could be considered for just compensation or not. After a great deal of analysis of the precedent and order 41 rule 33 of the CPC, the specific query was answered by a Division Bench of this court in National Insurance Company Limited V. E.Suseelamma⁹ . It has been ruled that any compensation awarded by a tribunal ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity and good conscience and the

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8 Supra 4

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9 Supra 5

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claimants always have a right to receive just compensation and that there is no legal interdict or a prohibition under law against the above principles and therefore plea for just compensation raised by claimants as response in the appeal preferred by the insurance company can always be heard and be adjudicated as per law. This legal position is not questioned by the appellant in the present appeal. Therefore, the claim for just compensation argued by learned counsel for respondents/claimants deserve consideration.

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The deceased Mr.Latheef was found to be aged 35 years. That finding of the claims tribunal is not questioned here. He was stated to be a person earning his livelihood as a building centring/ scaffold worker. The contractor under whom he worked testified as PW.3. The legal representatives of the deceased claimed that the deceased was earning Rs.10,000/- per month. Since PW.3, the contractor under whom the deceased was working did not disclose the remuneration of the deceased, it reached to the conclusion that the deceased was earning Rs.3,000/- per month. Towards possible personal expenses 1/3^rd was deducted and thus, his net monthly income was arrived at Rs.2,000/- per month. Considering the age of the deceased as 35 years, it applied

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multiplier 15 and accordingly arrived at Rs.3,60,000/- as compensation towards loss of dependency. It granted Rs.15,000/towards loss of consortium and Rs.7,500/- towards loss of expectation of life and Rs.7,500/- towards pain and suffering and loss of amenities. It granted Rs.2,500/- towards funeral expenses. Thus, compensation of Rs.3,92,500/- was granted.

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Learned counsel for respondents/ claimants contended that the compensation awarded is not in accordance with the principles of law and it can never be called as just compensation. It is argued that there are five dependents for the deceased and therefore towards possible personal expenses of the deceased only 1/4^th was to be deducted but the claims tribunal committed an error in deducting 1/3^rd . It is further argued that under the conventional heads, the law has been to grant Rs.15,000/towards loss of estate and Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses but the claims tribunal granted meagre amounts. It is further argued that the deceased being self-employed as a centring worker, towards future prospects 40% of the established income should be added in those cases where the deceased was below the age of 40 years. For all the above contentions, the strength is taken from the

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celebrated ruling of the Hon’ble Supreme Court of India in National Insurance Company Limited V. Pranay Sethi¹⁰ . The law laid down by the Hon’ble Supreme Court of India is the law for all the judicial forums in terms of Article 141 of the Constitution of India. Every judgment operates retrospectively unless it is stated otherwise in the judgment. Therefore, the ratio in Pranay Sethi’s case requires its due application to the facts available on record.

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Rs.3,000/- was the monthly income of the deceased. The deceased was aged 35 years. Therefore, 40% of the established monthly income towards future prospects has to be considered. That 40% comes to Rs.1,200/- per month. Thus, monthly income comes to Rs.4,200/-. Since there are five dependents, 1/4^th of the monthly income has to be deducted which comes to Rs.1,050/-. Thus, the net income comes to Rs.3,150/- per month. Annual income, comes to Rs.37,800/-. The multiplier to be applied is 15 as rightly decided by the claims tribunal. Thus, Rs.5,67,000/- is to be granted towards loss of dependency. Claims tribunal granted Rs.3,60,000/- only. Thus, an additional amount of Rs.2,07,000/- is

to be granted.

10 Supra 1

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Learned claims tribunal granted Rs.15,000/- towards loss of consortium and Rs.2,500/- towards funeral expenses. Nothing was granted towards loss of estate. Under these conventional heads, Rs.70,000/- is to be granted. What was granted was Rs.17,500/- by the claims tribunal. Therefore, the additional amount of Rs.52,500/- is granted.

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Learned claims tribunal granted Rs.7,500/- towards loss of expectation of life and Rs.7,500/- towards pain and suffering of the deceased. In Sarla Verma V. Delhi Transport Corporation¹¹ , the Hon’ble Supreme Court of India categorically held that in death claims, the legal representatives are not entitled for any amount towards pain and suffering and hardship caused to the legal heirs of the deceased. Therefore, Rs.7,500+7,500=15,000/- granted by the claims tribunal cannot be sustained and the same must be deducted. Thus, in this appeal, the additional amounts of Rs.2,07,000+52,500=2,59,500 are arrived at. From this, the above referred Rs.15,000/- is deducted. Thus, by this appeal, this court grants an additional compensation of Rs.2,44,500/-.

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11 (2008) 6 SCC 121

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In the result, this appeal is disposed of with a modification in the award with respect to the amount of compensation i.e., enhancing the compensation awarded in the impugned award dated 16.05.2007 of the learned Chairman, Motor Accident Claims Tribunal – Cum – Principal District Judge, Kurnool in MVOP.No.1189 of 2005 from Rs.3,92,500/- to Rs.6,37,000/- with 7.5% interest per annum from the date of petition till the date of realization. Appellant and respondent No.6/owner of the offending vehicle herein are jointly and severally liable to pay the compensation. Appellant/ The Oriental Insurance Company Limited is directed to deposit the amount within 30 days before the claims tribunal after giving due credit to amounts, if any, deposited already. Apportionment among claimants is governed by the proportions granted in the impugned award. There shall be no order as to costs in this appeal.

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As a sequel, miscellaneous applications, pending, if any, shall stand closed.

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Date: 05.03.2025

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Dvs

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________________________ Dr. V.R.K.KRUPA SAGAR, J

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